IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100019484 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests amendment of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 
15 December 1972 to change his rank/pay grade from “Specialist Six (SP6)/E-6” to “Captain (CPT)/O-3.”    

2.  He states the basis for his request hinges upon him serving in a CPT/O-3 position during two of his military assignments.  While attending Officer Candidate School (OCS) at Fort Benning, GA, he was interviewed by a personnel officer from the Staff Judge Advocate (SJA) office, and was subsequently chosen to serve on a special team created to support the General Court-Martial of Second Lieutenant (2LT) C______ , the defendant for the “My Lai Massacre” which occurred in Vietnam in the year 1968.  

3.  The team consisted of three people:  Major (MAJ) R_____, the chief military defense counsel; CPT D______, the assistant defense counsel; and himself, who was serving in a CPT billet due to his education in law.  

4.  He states Colonel (COL) K______, the presiding judge in the case of 2LT C_____, observed him on a daily basis and requested he personally serve as his law clerk after the trial.  He was later reassigned to the Republic of Korea (ROK) where he was asked to perform the same duties for COL M_____, another military judge.  He ended his enlisted career after serving 3 years and 3.5 months.  


5.  He provided copies of:

* a memorandum for record
* two military letters
* a framed personal note 
* a diploma for his Juris Doctor degree

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  His DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows he enlisted in the U.S. Army on 29 August 1969 for a period of 3 years.  Item 48 of this form indicates he enlisted to attend OCS to become an infantry officer. 

3.  His record contains a DA Form 3286-24 (Statement for Enlistment – Part VI – OCS Option), dated 15 August 1969.  This form shows, in pertinent part, he made acknowledgement of the following by placing his initials and signature on the form:

"In the event I should withdraw from the program, fail to qualify for a security clearance, fail to complete pre-OCS training, fail to successfully complete OCS, or fail to pass the physical fitness test, I will be required to complete the time remaining on my Regular Army enlistment period in an enlisted status and serve the remainder of the military obligation by law."

4.  His record contains a DD Form 214 that shows he was discharged on 4 May 1970 for the purpose of immediate reenlistment.  A second DD Form 4 shows he reenlisted in the U.S. Army on 5 May 1970, for 3 years in military occupational specialty (MOS) 71D (Legal Clerk).
5.  His DA Form 20 (Enlisted Qualification Record) shows in item 32 (Civilian Education) he attained a Bachelor of Arts in History with California State University in 1969; and completed 12 semester hours in Criminal Law with Western State University the same year.

6.  Item 33 (Appointments and Reductions) of his DA Form 20 shows the following appointments:

Grade
Date of Rank (DOR)
Authority

Private/E-1
29 August 1969
*Army Regulation (AR) 601-210



Private/E-2
29 December 1969
*AR 600-200, Paragraph 7-19a

Private First Class/E-3
12 January 1970
Special Orders (SO) 100, 1970

Specialist Five (SP5)/E-5
2 February 1970
SO 26, 1970

Specialist Four/E-4
10 August 1970
SO 254, 1970

SP5/E-5
11 January 1971
SO 19, 1971

SP6/E-6
1 December 1972
SO 336, 1972
*Note.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) and Army Regulation 600-200 (Enlisted Personnel Management System).

7.  Item 38 (Record of Assignments) of his DA Form 20 shows, in pertinent part:

Effective Date
Duty MOS
Principal Duty
Organization/Station

3 November 1969
11B(Light Weapons Infantryman)
Advanced Individual Training

Fort Ord, CA
31 January 1970
09S (Officer Candidate)
Infantry OCS Student
Fort Benning, GA

30 April 1970
-
Casual
Fort Benning, GA

20 May 1970
71D2O
Legal Clerk
Fort Benning, GA

21 December 1971
71D2O
Legal Clerk
ROK
8.  His records do not contain his OCS dismissal board proceedings.  However, item 42 (Remarks) of his DA Form 20 shows that on 29 April 1970, he was released from OCS for lack of leadership potential under the provisions of Army Regulation 351-5 (United States Army Officer Candidate School).
9.  His record is void of evidence to indicating he was commissioned or was promoted to the rank of CPT/O-3 at any time during his military service:

10.  He provided copies of correspondence that highlight the following:

* he served as chief legal clerk for the defense in the case of U.S. vs. C_____
* he was recommended for promotion to SP5 based on his outstanding performance of duty
* he was assigned responsibilities normally performed by commissioned officers
* he sought out and welcomed responsibility
* he had the ability to promptly and accurately decide how to complete tasks
* he consistently accomplished his duties without supervision
* he could undertake and solve problems on his own
* he was unhesitatingly recommended for employment in any organization which had a need for a hard-working, intelligent, honest and politically astute staff member

11.  He provided a copy of a framed personal note from 2LT C______ that thanked him for the long hours he spent in his case.

12.  His DD Form 214 for the period ending 15 December 1972 shows the following entries:

* Item 5a (Grade, Rate, or Rank) – SP6 
* Item 5b (Pay Grade) – E-6 
* Item 6 (Date of Rank) – 1 December 1972
* Item 11a (Type of Transfer or Discharge) – Transfer to U.S. Army Reserve (USAR)
* Item 14 (District, Area Command or Corps to which Reservist Transferred) – USAR Control Group (Reinforcement)
* Item 16 (Terminal Date of Reserve Obligation) – 28 August 1975

13.  His record contains Letter Orders (LO) Number 07-1238411 that show he was discharged from the USAR on 1 August 1975 in the rank of SP6.

14.  He also provided a copy of a Western State University, College of Law Diploma that shows he was awarded a Juris Doctor degree on 17 June 1978.


15.  Army Regulation 351-5 states, in pertinent part, that candidates who clearly show a lack of aptitude or qualification for commissioned status as determined under procedures established by the school commandant, will be relieved from OCS.  The school commandant or a named representative may relieve a candidate whenever a lack of aptitude or qualification for commissioning has been determined.  The decision may be due to disciplinary reasons, academic deficiencies, disqualifying physical conditions, deficiencies in leadership, security reasons, lack of motivation, falsification or omission of facts on application, honor code violation and misconduct.

DISCUSSION AND CONCLUSIONS:

1.  His request to amend his discharge document to show his rank as "CPT/O-3" instead of "SP6/E-6" was carefully considered; however, it is not supported by the available evidence.

2.  The evidence shows he was released from OCS on 29 April 1970 for failure to meet leadership standards.  He subsequently reenlisted on 5 May 1970, in MOS 71D.

3.  Although he provided correspondence which stated he was performing duties normally performed by a commissioned officer, there is no indication he was commissioned or held the rank of CPT/O-3 at anytime during his military career.  Therefore, he is not eligible for show CPT/O-3 as the highest military grade held.  

4.  His DD Form 214, dated 15 December 1972, correctly reflects "SP6/E-6," which is the highest military grade he held while serving in the Regular Army.

5.  Letter orders show he was discharged from the USAR in the grade of SP6 on 1 August 1975. 

6.  There appears to be no error or injustice in this case and as a result, there is no basis for granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.




ABCMR Record of Proceedings (cont)                                         AR20100019484





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ABCMR Record of Proceedings (cont)                                         AR20100019484



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